On “Tempered Complementarity”: The International Criminal Court and the Colombian Peace Process

The 2016 peace deal between the Colombian government and FARC rebels was negotiated against the backdrop of the International Criminal Court’s (ICC) potential jurisdiction over, and ongoing preliminary examination of, war crimes and crimes against humanity committed during decades of civil war. The Final Accord creates a Special Jurisdiction for Peace (SJP), which would make some perpetrators of serious crimes eligible for relatively short sentences of “effective restriction of liberty and rights.” With critics condemning the SJP as a form of amnesty, the Colombia situation is not only a case study in the functioning of the Court’s complementarity mechanism, but the first serious test of the Court’s tolerance for alternative justice measures at the admissibility stage. This article frames the public pronouncements of the ICC’s Office of the Prosecutor (OTP) on the Colombian situation on the one hand, and the text of the peace accord on the other, as a dialogue. Analysis of this dialogue shows how the OTP has effectively leveraged the ICC’s potential jurisdiction to influence the content of the Final Accord, and has actively sought to maintain Colombia’s domestic jurisdiction, suggesting a new “tempered complementarity” approach.